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Taser color factor in grand jury's decision

The safety of people inside a Carl’s Jr., a potentially wrongful arrest, and the color of a Taser were among the factors a grand jury considered before deciding not to press charges against an Eagle Point police officer who fatally shot a mentally ill man because the officer thought he saw a gun.

The grand jury discussed the black color of a department-issued stun gun — a key factor in the Sept. 19 shooting death of 33-year-old Matthew Thayer Graves by Officer Daniel Cardenas, according to a transcript of the Oct. 24 hearing released Tuesday by the Jackson County District Attorney’s Office.

The Taser, which belonged to a police officer, clattered to the ground seconds before Graves was shot.

“It seems like that may have not come to this if it was a bright color that was pretty obvious that it wasn’t a gun,” a grand juror said in the transcript.

“Absolutely true,” District Attorney Beth Heckert responded.

The grand jury was asked to decide, “Did the officer act lawfully under Oregon law?”

Heckert explained to the jury, “So at the moment when he fires, did he reasonably believe his life was in danger or someone else’s life was in danger, and that’s why he shot.”

Five of the seven members of the jury, who were not named, determined that Cardenas acted lawfully, clearing him of any wrongdoing.

The transcript shows numerous factors weighed on the grand jury, but few as heavily as the color of the Taser. At least two jurors asked Heckert whether there was a way to require that nonlethal weapons used by police departments be a different color from their firearm, with one juror described it as “something that could come out of this situation.”

Use-of-force expert John Black from Washington County testified before the grand jury that the Axon Taser X26P involved was also sold in yellow.

Black testified on diagnostics of the Taser involved. The weapon had been deployed three times, but based on voltage levels, the weapon never made contact with skin until the third time it was fired.

Officer Clarence “CJ” Davis testified the weapon had been in his left hand.

Black observed that Davis shouted that the weapon involved was a Taser, not a gun, less than two seconds before Cardenas fired.

Black testified that he believed justifying the shooting was “a reasonable conclusion by one officer.”

“So by Officer Cardenas to use lethal force in defense of another, was it reasonable? My belief, yes,” Black testified.

Black said he saw signs that high adrenaline was a factor, starting with Cardenas’ frantic call for backup, through to the end of the shooting, when Cardenas screamed at Graves, “Why did you do this?”

Black described Cardenas’ outburst as a form of “adrenaline dump” following a high-stress situation.

“It’s a human reaction to being placed in a life-or-death situation,” Black said.

Davis testified that Graves had punched him in the face hard enough that he lost consciousness for several seconds after he arrived on scene. He also testified that he did not know that Cardenas had deployed his Taser prior to his arrival.

The altercation — captured on police video — began about 8 p.m. Sept. 19, when Cardenas attempted to stop Graves for failing to obey a light at a crosswalk. After Graves refused to stop, Cardenas followed him to the Carl’s Jr. and into a restroom.

The transcript shows that the grand jury and Heckert mulled over whether Cardenas’ arrest was lawful at the start of his altercation. Heckert said she only saw grounds for an arrest midway through the altercation — after Graves pushed and later attacked an officer.

“So, I mean, at the beginning, he doesn’t have a right to be arresting him,” Heckert said. “Like when he first tells him, you know, ‘Get on the ground.’ You know, it’s not a crime. There hasn’t been a crime yet. So there’s an issue there, but again, Mr. Graves’ reaction isn’t allowed by Oregon law either.”

Graves’ resistance wasn’t justified under Oregon law, according to Heckert. A person is not allowed to physically resist an arrest by an officer, even if the arrest is unlawful, she said.

Failure to obey a traffic signal device is classified as a traffic violation, according to Heckert. Cardenas had the right to issue a citation.

“When he’s not stopping for that, at some point, could he eventually arrest him?” Heckert discussed with the grand jury. “And I think it’s a little gray area.”

During the discussion, a juror drew from Cardenas’ testimony, saying he was worried about bystanders.

“He said he was worried about someone getting hurt,” the juror said.

The transcript shed some new light on the thought processes of the officers.

In Cardenas’ testimony, he expressed concern that someone else would take the law into their own hands.

“I didn’t want him out there because there’s other people out there, and I didn’t want to get anyone else involved,” Cardenas said, describing why keeping Graves in the bathroom was a priority. “The thing about Eagle Point is our community likes to get involved, it’s to our benefit sometimes.”

A juror asked Cardenas what he meant when he was recorded threatening Graves near the door, “Touch me again and see what f---ing happens.”

“So at that point, in my experience as a police officer, sometimes you have to match the way people talk because you got to communicate. ... Because he’s talking to me like that, maybe if I speak to him like that, it will click; he’ll see that, OK, yeah, all right, dude, I’ll show you my hands,” Cardenas said.

Neither officer considered Graves’ mental health as a factor during the altercation, according to the testimony.

“All I can think is this guy is pissed off,” Cardenas testified.

Davis testified that he “did not have enough time” to think about Graves’ mental health after Davis was punched in the face.

Cardenas told the grand jury he’d never seen Graves before. Davis testified that he didn’t recognize Graves at the time, though records showed he’d had prior contact with him several years earlier.

Graves had prior drug convictions from about 2011, but had been living with his parents and had been clean and sober, according to earlier news reports.

Reach reporter Nick Morgan at 541-776-4471 or Follow him on Twitter @MTCrimeBeat.

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